USA > Massachusetts > Worcester County > Worcester > Town annual reports of the several departments for the fiscal year ending December 31, 1882 > Part 8
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A fall of Snow occurs during the Winter season; as in the order of Nature it is desirable, even if it is not essential to life, that it should ; when the greed of the individual interposes, with his crafty devices, the roadway being made to reek with salt, to the prejudice of the feet of men and animals; and to the ulti- mate harm of the roots of the trees, whose planting and growth were objects of municipal encouragement. It is no longer,- Live, and let live ! but rather,-You get out of my way ! This COMMISSION, having lived in the past of Worcester ; and surviving in undiminished vigor and faith for its future; long since addressed itself to obviate and abate what has been suffered, by inert tolerance, to become a public nuisance. Upon an applica-
* The city of Indianapolis gets some return; taxing $2.00 per annum for every pole erected by telegraph and telephone companies within its limits.
E. W. L.
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CITY DOCUMENT .- No. 37.
tion from the Worcester Horse Railway Company, for leave to duplicate its tracks in and throughout Main Street, audience was granted by the Honorable Board of Mayor and Aldermen, to show cause why the easement of the whole population in that Street; an easement that contemplates a thoroughfare without other charge than that for necessary maintenance ; an easement that was the free concession (but not disseizin) of the original proprietors for the benefit of the whole inhabitants; should not be perverted, as it were, and alienated to a private corporation, seeking to segregate said Street to their especial method of putting money in their purse, by one method of conveyance, and transportation, to the exclusion of all others! At that audience, this COMMISSION submitted its views, as follows :-
COMMISSION OF PUBLIC GROUNDS.
March 20th, A. D. 1882.
To the Honorable MAYOR and ALDERMEN.
The undersigned would submit to your Honorable Body, at this hearing, that advantage should be taken of the present occasion, when the City is asked to surrender, in great measure, the control and use of a portion of its Streets, to rectify a former error of judgment.
All the surface gutters and drains of the COMMON have been graded so that their ordinary flow, as well as storm water, should empty into the channels along Front Street. The track of the Horse Railroad Company, however, is so located, that all the dirt or snow which is shovelled, or plowed, from it, becomes an obstruction in the Street Gutter along the North Kerb of the COMMON.
Now, why not require, as an indispensable pre-requisite, before granting the request of the Horse Railway Company, that the Track of that Company be transferred from the side to the centre of Front Street. Then if the Street is graded, slightly and uniformly concave, towards the centre, with openings into the Main Sewer, there will be afforded an obvious and easy relief from the floods which, during furious storms, become excessive, even if they are, happily, infrequent.
Very Respectfully,
EDWARD WINSLOW LINCOLN, Chairman.
The action of the Mayor and Aldermen corresponded with this suggestion in so far that the tramway was transferred to the centre of Main Street, at its intersection with Front ; and of
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PUBLIC GROUNDS.
Front Street, protracted parallel to the North face of the COMMON. But the elevation, or grade, unfortunately ; to amend which was the actual gist of the note to the Honorable Board, from this COMMISSION ; whether through tolerated assumption, or official lâches, is worse instead of better. The centre of the tramway has been raised, so that in time of flood the surface water is deflected and repelled towards, instead of from, the COMMON. All the salt that is allowed, for the present ; all which will be suffered until the people lose patience and insist upon an enforcement of their rights; flows off the crown of that tram- way and settling and saturating, saps insidiously, and if slowly, surely destroys the vitality of those patriarchal elms that adorn the Northerly line of the COMMON. The purpose of the COMMIS- SION was to remedy this ; and to anticipate a pressing need as well. Few persons realize the character and extent of the water-shed, whose overflow must pass off over, unless an escape is provided under Front Street. All of Pleasant Street, from its summit with its numerous influents ; all Chestnut Street, broad and almost precipitous as it is; and a great length and area of Main Street ; combine to deliver their storm-water, as they can nowhere else, in accordance with the law of gravitation and with scant regard for public convenience or restriction. Those who have not seen, can form but a shallow estimate of the flood that rushes down those declivities during the not infrequent thunder-showers when from three to four inches of rain are pre- cipitated in an hour. This COMMISSION would have provided for such emergencies They would have converted the tramway into a channel instead of a ridge; transforming it from a spine as it were into a gut. A track, thus sunken; with the entire surface of a street, as broad as Front, inclined towards its centre ; inlets to the Sewer being opened with sufficient fre- quency along its course ; and there would have been supplied a gutter ample for every exigency ; an escape for superfluous rainflow; a cheap and facile method of flushing the general Sewer; and a certain protection against possible, if only occa- sional, submersion, for the North walk of the COMMON. Salt, now used in defiance of law; if its illegal application were not
11
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CITY DOCUMENT .- No. 37.
prevented by the super-serviceable champions of human asceti- cism and drought ; might at least stay where it had been put, or, as it melted without loss of savor, flow off into the Black- stone, to the infinite betterment of the Millbury fisheries.
To illustrate another, and too frequent, abuse !
" Worcester, Dec. 18, 1882. E. W. LINCOLN. Dear Sir :
On Friday last (15th) there was a barn moved by my place which broke down the only tree we had. Is there any redress for such negligence ? Yours, &c.,
No .- , Pleasant Street."
The signature is not material here, inasmuch as the fact is undisputed. Of course the Chairman, although not the legal adviser of the City, was able to inform his correspondent that the Courts are open to him : a piece of intelligence that must have been hugely gratifying. Possibly he should have been referred, in case punishment was sought, to the tireless energies of the Police. But the Chairman has no little hatchet ;- and the days of miracles are past. The precise trouble, in all these cases, is, that the movers of buildings are too apt to fancy that their license is a shield against misconduct or error. They never. appear to realize that the permission must be strictly construed : bearing, if at all, against themselves. That they have no more right to mutilate or destroy a Shade-Tree in the Public Streets, under color of such a license, than they would have to tear down or up-root fences and shrubbery in front-yards. They may do a certain specified thing : aught different, or in excess, is at their individual peril and cost. If those licenses were more strictly guarded, requiring people, who would move buildings through the public streets, to merit that great privilege by reducing the inconvenience to a minimum, through a sufficient subdivision of the buildings, there would be vastly less complaint as its chief cause would be done away.
This facile submission to aggression, provided only that it be sufficiently audacious, contrasts sharply and strangely with the harsh exaction of conformity to oppressive, and unwholesome restrictions. As the territory of Worcester becomes more
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PUBLIC GROUNDS.
densely built upon ; and the opportunities for out-door sports are proportionately diminished; it appears as if the officers of the law redouble their activity to repress the natural manifesta- tions of youthful activity and exuberance. Coasting,-a common custom of their fathers, is prohibited to the children over the very land whose fee is in themselves,-if in more or less tem- porary abeyance. Rather than incommode the Police! it is thought better to confine our growing boys and girls in-doors, to catch diphtheria as it issues effluent from the sewers. It might seem, at first thought, to be easy enough so to guard certain Streets (for not all are suitable, if desirable); that the public easement of traffic and travel should not conflict with the innate fondness of children for athletic enjoyment and wholesome fun. The writer is of opinion that it would not be difficult to demonstrate the absolute right of juvenile Worcester, to a partial occupation of the highway, for the time being, at the least as valid and perfect as that of their elders, whose carriages are more cumbrous, and whose "careless boys " as apt to invite perilous collision.
It would be difficult to compute the amount of harm that has been done, in past years, by the Courts of New York, through judgments so rankly unjust as to sap popular faith in the judi- ciary everywhere. But recent decisions of those very Courts have gone far to revive the original confidence, and to confirm the wisdom of the Fathers of the Republic, who regarded the temple of Themis as the final refuge and sanctuary of Popular Right. It is not requisite, here, to more than allude to that grand decision of the Court of Appeals whereby it was deter- mined, once for all, that no power or exigency, less than that of the State! in its direst extremity, can confiscate, or render value- less, individual property, without compensation to the owner. And the wholesome medicine thus timely administered, by the highest tribunal of that great State, to the arrogant Elevated Railway Corporation, is again prescribed by Justice Dykman, of the Supreme Court, in a more recent case of similar infection and virulence. As a matter of direct local concern, which is bound to agitate this and all other communities, more and more,
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until its final settlement by the unconditional recognition of individual immunities, it is recorded here in a foot-note that its publicity may be as permanent as the City Documents .*
* RIGHTS OF DOMAIN .- Decision of Interest to Telegraph and Telephone Companies .- New York, Dec. 2, 1882 .- Justice Dykman of the Supreme Court yesterday rendered an important decision in regard to the assumed rights of the Mutual Union and other telegraph and telephone companies to set posts or poles on the highway in front of the owners' premises, without equitable compensation therefor. A deep interest has been manifested throughout Westchester County as to the result of the action brought before Judge Dykman, inasmuch as in the case of Mr. Strong of Pound Ridge, who cut. down a number of poles set by the Mutual Union Telegraph Company, on the ground that he had not been compensated for the privilege, he was arrested for his action in the matter. The suit before Justice Dykman in the present instance was that of C. Coles Dusenbury against the Mutual Union Telegraph Company. Judge Dykman says : The defendant in the action set some telegraph poles on the side of the road in front of the plaintiff's land and residence, in the village of White Plains, without making compensation, and this action is for their removal. It is undisputed that the plaintiff is owner of the land thus occupied, subject only to the highway easenient, which, between him and the defendant, leaves his ownership complete and exclusive; nor is it an improper remedy to rid the highway of this burden, wrongly imposed. The defence is that there is a statute of this state author- izing such occupation as defendant has made, and that the plaintiff is, by the terms of such statute, limited to one single remedy. The defendant urges that it is authorized to occupy the highway in question without compensating the fee owner, and that the latter must set in motion the judicial machinery provided to measure the compensation to be made, and await its slow motion. . Careful study of principle and authority will show that, under the constitu- tion, the defendant's claims could not be given, and that the statute invoked does not attempt to confer any such authority. There are two great classes of corporations created for purposes of government, as applied to such corporations. The term "public " is synonymous with municipal. Private corporations are created for commercial purposes ; they are sometimes made agents of the statute; and, by inconsiderate talking and writing, they are sometimes called "public," but their nature remains the same. They are trading corporations. It is too late to question the power of the State itself to appropriate the property of its citizens for public purposes, and defer payments, and the principle has been extended to corporations created for purposes of local governments; but the reason of this exercise of power is in the undoubted responsibility of state and municipality to compensate the owner. The gulf between governmental corporations and commercial com- panies is nowhere wider than at the question of eminent domain, and the gulf is not bridged by clothing the latter with a public character by the courts, to enable them to make the exercise of the right of eminent domain. The text writers agree that these private companies ought to be required to pay before appropriation of property. Mr. Cooley, in his "Constitutional Limitations," p. 702, says : "Where, however, the property is not taken by the State, or by a municipality, but by a private corporation, which, though for the purpose, is to be regarded as a public agent appropriating for the benefit and profit of its members, and which may or may not be sufficiently responsible to make certain the payment in all cases of the compensation which shall be assessed, it is certainly proper, and it has sometimes been questioned whether it was not absolutely essential, that payment be actually made before the owner could be divested of his freehold." After quoting various authorities in support of the foregoing views, Judge Dykman con- cludes by saying : "My conclusions are that the defendant must make pay- ment of compensation precedent to appropriation. The plaintiff must, there- fore, have judgment."
-
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PUBLIC GROUNDS.
The best accepted authority, upon this subject, cited by the learned Judge, thus apprehends the very issue contemplated in these remarks :-
" Another condition is annexed to the exercise of this power" (Eminent Domain) "by the Constitution of the United States, and by that of many States,-a condition which is universal in practice, and would doubtless be held to be always implied in law; it is that adequate compensation be made to those from whom the property is taken. The most common instances of the exercise of this power are in the case of lands taken for roads or canals ; but it is, we conceive, quite certain that the principle itself is wholly unlim- ited, and that by virtue of it any property may be taken by the Sovereign Power, from any owner, provided it is required for the public use, and com- pensation is made to the owner from whom the property is taken."
The Honorable MAYOR and ALDERMEN, ever weighty in the law; and whose loins have been mightily girded up and re- inforced at the recent Municipal Election ; will pardon the writer for the bare suggestion that the People build Streets, surrender damages, or accept inadequate compensation, for their own particular uses and behoof forever ! And not that their fee- simple by birthright, or purchase, may be bartered for a soup maigre at which even the hungry Esau would have revolted.
It has been assumed, possibly with too much confidence, that Queer Cuss Damphool* died, erewhile. Artemas Ward was gone and, taking his " wax-figgers" with him, had left an undoubted vacuum. As much however could not be said for Q. C. D. His existence was never indispensable; he did little to vary the monotony of ordinary life; and, if quicted, why would he not lie still ?
the times have been, That when the brains were out the man would die, And there an end ":
But, hark ! The following correspondence is published " ver- batim et literatim :"
"WORCESTER July 11th 1882 " MAYOR " STODDARD
My dear Sir
Will you pleas use your influenc with our Commissioner of Public Grounds, (the appellativ of " Shade Trees" to his title is I think a misnomer
* His baptismal name, singular as it seems. His parents might well be a-kin to that youthful matron, who stuttered out to the officiating priest, that she wished her first-born to be christened-Luthy ! Thir!"
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CITY DOCUMENT .- No. 37.
for he cares nothing about them in the Streets and they are being mutilated and destroyed on every hand, a signal example of his "dont care " is a fine Elm on the corner of Pearl and Main which is fast being destroyed by horses) to have seats placed under all the shade trees on Elm Park? He has a sufficient number in the open grounds which are not desirable this hot weather but there are many large Shade Trees which are not utilized. For instance some fine large trees opposite the Agricultural Grounds. An oak tree south of these on the Street. Some near the South end and West side and also some beautiful Maples near the Hammond mansion all of which would be desirable locations for seats which would be very comfortable and pleasant for our wifs & children or the tired pedestrian this sultry weather. Last Sunday too many of our citizens were obliged to perspire and suffer on their feet in the sun rather than enjoy seats in those cooling shades which cost so little to furnish."
[And so on, in longitude and platitude, digressing to dilute and weaken the arguments employed by this Commission, for the last decade, in behalf of the acquisition, by the City, of Newton Hill .- E. W. L.]
" Very Respy Your
" RURAL."
" MAYOR'S OFFICE.
Worcester, Mass., July 11. 1882.
EDWARD LINCOLN Esq
Ch Commissioners on Grounds
-My dear Sir.
I enclose an anonymous letter hoping it will not in the least annoy you this hot day & showing how little the unknown appreciate. your good honest work. If you think proper a few more seats would be desirable.
Truly Yours,
E. B. STODDARD."
And that with the mercury at 90°, his waste-basket at hand, and paper-stock in demand !
The COMMISSION OF PUBLIC GROUNDS invite pertinent criticism and trust never to be too old, or stupid, to learn. For now Twelve Years,-throughout which whole period the Chairman has been, perhaps unduly, commended by his fellow-citizens ; certainly never encountering the slightest difference of opinion from his colleagues; not a day nor an hour can be indicated
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PUBLIC GROUNDS.
when his time was grudged to the public service. But yet such yelps are to be expected, for is it not written that
" They shall grin like a dog and run about the city ;"
and is it not notorious that our latest civic administration has scarcely had time to suspend its "goose and enamel every cheek ? The Chairman, like his colleagues upon the COMMISSION, has no respect for anonymity. But neither has he pride of office,-save to do his duty fully and efficiently. When he falls short of his own conceptions of what official obligations are, he will not hesitate to step down and out.
Precedence for the insinuation ! that " don't care" is the rule of precaution for Shade-Trees. And thereafter, the solitary specification ! Now let any man, who is not ashamed of his name, ask Mr. George T. Rice, if he had not promised to guard that tree, in his own interest; and if the Chairman, tired of waiting, did not threaten to act without further delay ? Take the testimony of the late Marshals of Police, and learn if they had much peace from the continual appeals of the Chairman for a watch upon this tree, or his complaints because that had been mutilated ?
But there is not a sofa-cushion apiece for the people who visit ELM PARK ! and as for " Rural,"-he forgot to bring a camp- stool. The COMMISSION neither intend nor expect to find seats for our entire population : they will try to accommodate a portion, reserving room for here a blade of grass-there a flowering plant or shrub. Long before that whine was echoed by his recent Honor, Mr. Pembroke S. Rich had a contract to supply an additional number of settees for both ELM PARK and the COMMON : the COMMISSION keeping them equally in inind.
".E pur si muove !" persisted Galileo : and of course the earth, by its rotation, will now and then tan a fair hide although it may be " trooly rooral." They say that a goose is the most stupid bird in nature. But a gander, -- that cannot, or will not, step out of the sunlight, if it fears to get bleached, will scarcely alarm Rome in our day. There are yet a few, who prefer to surrender their carpets to the light, rather than to the moth; who luxuriate in a sun-bath; and who regard " perspiration"
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CITY DOCUMENT .- No. 37.
(sweat ?) as a consequence of temperature, and also as a whole- some sign of sound health in hot weather.
But there should be seats under every tree! Not if the COMMISSION knows itself. No one would visit a Park that is a waste : and such would soon become that Public Ground wherein seats were ubiquitous, and the ways to them criss-cross and everywhere transgressing. Somewhere must be discretion : a prudent forethought,-possibly some restraint. Yet men, who devote their time 'and energies to the better provision of inno- cent enjoyment for their fellow-beings, are not likely to impose any restrictions upon the individual that are not absolutely essential to the welfare of the whole body politic.
The richest joke of all, is the moon-eyed innocence that would dilute the pure milk wherewith this COMMISSION have been wont to feed the community, upon the subject of Newton Hill. Oh, Flatulence ! were it but healing on thy wings !
Yet this is all a waste of time that might be employed more usefully. Should there be an individual, in this entire com- munity, who will devote himself, with a more thorough consecra- tion of body and mind, to the out-door development and adorn- ment of Worcester, than the present members of the COMMISSION OF PUBLIC GROUNDS; upon the recognition of his merit and after due election by the proper authority ; he will find place and praise accorded to him gladly enough, by any of the existing incumbents. His advancement to a position, not exclusively lucrative, will provoke no envy on their part. They will rejoice in his achievements ; make proper allowance for his deficiencies, should he perchance disclose any ; refrain from putting the knife under his fifth rib, while asking-" Art thou in health, my brother ?" and strive not to withhold due honor and laud, where merited, by one who, when situations were reversed, was more wont to
" Damn with faint praise, concede with civil leer."
Some views of the relative rights of the People, in whom Eminent Domain inheres ; and of individuals, who, for their private emolument, usurp the exclusive use of running streams that were vital with a health-bearing current, only to render them
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stagnant, and inevitably lethal by the obstruction of continuous dams ; plainly stated in the latest Report of this COMMISSION ; irritated the pocket-nerve and rasped the temper of certain men, of more or less consequence, a-down the Blackstone. Their comparative importance is not material to the issue, as it affects "plain people " everywhere; which is, whether the laws of Nature shall be suspended that compel Water to keep in motion, or rot ; and make it imperative upon the atmosphere that resumes the water, to blow as it listeth, or to be still and abate its whole- some influence.
The employment of Steam-Power has been tried in Worcester, and found not inconsistent with the use of ample and steady force, with a reasonable return of profit. Boilers might be fed, far more easily, from a descending stream ; the help of gravita- tion, and the re-inforcement by additional affluents, combining in behalf of those for whom no tariff can be sufficiently diserimi- nating, that does not enact a bounty, downright in their favor. But there is an appetite so pampered that neither God, nor man, can fill its maw-ever craving, ever hungry ! To such may be applied the felicitous phrase of the ancient satirist, in his description of the imperial prostitute of Rome :-
" Donec lassata, necdum satiata, recessit."
Only, they never get tired ! Prohibitory duties are well enough in their way. But then,-they enure to the protection of rivals, along other waters. The privilege of stopping the channel and maintaining a dam is valuable : but then it is a privilege, and not an unrestricted fee. Nor, if it were, would it be estimated at a fraction of the worth that is put upon the claim, cherished by those mill-owners, to introduce a siphon into the treasury of Worcester. Kettle Brook or the Mumford River may serve for scouring the Golden Fleece. But the very sands of the Pactolus that takes its rise from the N. W. corner of Front, and Main, Streets, are weighty with the virgin metal.
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